The power dynamic within employment relationships has a direct bearing, and often can be decisive in the outcomes of industrial disputes. Indeed, the ability of employees to effectively negotiate agreeable working conditions is dependent upon their actual or perceived ability to withdraw their labour. A powerful form of industrial protest available to employees and trade unions is the picket line. This essay aims to discuss the legal treatment of picketing under the current law in Australia and the range of relief options available for employers. Further, it will examine the whether the law should move beyond a merely formal recognition of workers’ interests to a substantive consideration of the objectives of pickets during industrial action. The legal position of picketing
Under the Fair Work Act and its predecessors, industrial action undertaken as a part of the process of collective bargaining and negotiation is given some statutory protection from common law and other legal liability. Industrial action as defined in s19(1) largely mirrors its counterpart previously contained in the WR Act and covers a range of possible industrial activities available to employees and union representatives. Although picketing by its very nature, is a form of industrial action insofar as it is a means by which employees can apply strategic pressure, the courts and the Australian Industrial Relations Commission (‘AIRC’) have preferred a more technical approach to its categorisation. Given that s418-420 orders can only apply to industrial action as defined under s19(1), the nature of picketing and whether it constitutes industrial action has long been a contentious issue. In Davids Distribution v National Union of Workers, (‘Davids’), the Full Federal Court noted the two extremes of picketing. Peaceful picketing with a collection of people outside an establishment making protests, and dissuading employees, suppliers, clients or customers of the employer from entering the site is, and has never been unlawful. However, as its name suggests, it would not fall under the technical definition of ‘industrial action’ as there is no need for the protected action provisions. On the other hand, the contentious form of picketing is that which is coercive and takes the form of preventing or hindering people from performing, accepting or offering for work. In the Davids decision, the court held that picketing was excluded from the scope of the immunity granted under the Act and by the same token, would not be subject to FW Act sanctions against unprotected industrial action. Available Relief
Where picketing ceases to be peaceful, there are a number of sanctions available for employers at common law. That is, once the picketing moves beyond a form of ‘mild persuasion’, there is potentially a wide range of sanctions both at common law and under statute including termination of employment, liability under Trade Practices Act while industrial and economic torts such as nuisance, interference with trade, trespass, conspiracy and intimidation could also be committed. Further, where unprotected action is “designed to coerce bargaining representatives to enter into an enterprise agreement or adverse action against an employer”, liability for a civil penalty for breach of the FW Act may also be imposed. For Nyland and Svensen and this author agrees, the difficulty of “stating succinctly what the law is on picketing” and the “bewildering range” of potential liabilities following a picket line is a concerning issue insofar as it changes the right of any individual or group to picket peacefully. Is this area of law settled?
For Willis however, it is difficult to be critical of the decision in Davids. She argues that with other forms of industrial action, the employer is technically able protect itself by employing other resources. Further, she contends that if...